United States v. Luis Munoz Miranda

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 15, 2014 Decided March 20, 2015

No. 13-3032

UNITED STATES OF AMERICA,

APPELLEE

v.

LUIS ALBERTO MUNOZ MIRANDA, ALSO KNOWN AS DAVID,

ALSO KNOWN AS EL GORDO,

APPELLANT

Consolidated with 13-3036

Appeals from the United States District Court

for the District of Columbia

(No. 1:10-cr-00106-5)

(No. 1:10-cr-00106-2)

Douglas J. Behr, appointed by the court, argued the cause

for appellants. With him on the briefs was Elita C. Amato,

appointed by the court.

John-Alex Romano, Attorney, U.S. Department of Justice,

argued the cause and filed the brief for appellee. David M.

Lieberman, Attorney, U.S. Department of Justice, entered an

appearance.

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Before: SRINIVASAN, Circuit Judge, and EDWARDS and

SENTELLE, Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge SRINIVASAN.

SRINIVASAN, Circuit Judge: Luis Alberto Munoz

Miranda and Francisco Jose Valderrama Carvajal, citizens of

Colombia, pleaded guilty to drug conspiracy charges under the

Maritime Drug Law Enforcement Act (MDLEA). They

contend on appeal that the MDLEA is unconstitutional as

applied to their conduct, that the MDLEA fails to reach

extraterritorially to encompass their conduct in Colombia, and

that the facts in the record fail to support acceptance of their

guilty pleas. We reject their challenges and affirm their

convictions.

Appellants waived all but one of the arguments they now

raise when they entered pleas of guilty without reserving any

right to appeal their convictions. With respect to their

remaining claim, concerning whether vessels used by the drug

conspiracy were “subject to the jurisdiction of the United

States” within the meaning of the MDLEA, that issue

implicates the district court’s subject-matter jurisdiction and

thus could not be waived by appellants’ guilty pleas. On the

merits of the issue, however, appellants’ statements of

stipulated facts fully support the district court’s conclusion that

the relevant vessels were subject to the jurisdiction of the

United States.

I.

On April 23, 2010, a federal grand jury indicted Munoz

Miranda and Valderrama Carvajal, along with others not

before us on appeal, for participating in an international drug

smuggling conspiracy in violation of the MDLEA, 46 U.S.C.

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§§ 70501 et seq. The indictment charged appellants with

conspiring to distribute a controlled substance on board

“vessel[s] subject to the jurisdiction of the United States.” Id.

§ 70503(a)(1). The drug smuggling operation used “go-fast”

boats (small boats capable of traveling undetected and at high

speeds) to move drugs from Colombia to various Central

American countries. From 2006 to 2010, the smuggling

organization transported large quantities of drugs in numerous

shipments.

Neither Munoz Miranda nor Valderrama Carvajal planned

to, or did, leave Colombia in furtherance of the conspiracy.

Valderrama Carvajal served as an organizer of the smuggling

operations, and Munoz Miranda provided logistical support.

In 2011, Colombian officials arrested Munoz Miranda and

Valderrama Carvajal. They were extradited to the United

States shortly thereafter.

In the district court, Munoz Miranda and Valderrama

Carvajal moved to dismiss their indictments on a number of

grounds. They claimed that the ships used by the conspiracy

did not satisfy the statutory definition of vessels “subject to the

jurisdiction of the United States,” 46 U.S.C. § 70502(c),

because the ships were in Colombian waters at the time of

capture. Appellants further contended that, because their

conspiratorial acts did not take place on board any vessel, the

MDLEA does not reach their conduct. They also challenged

the constitutionality of the MDLEA on two grounds, claiming

(i) that Congress lacks Article I authority to criminalize their

extraterritorial conduct, and (ii) that applying the statute

against them without demonstrating a nexus to the United

States violates their due process rights. On October 11, 2012,

the district court orally denied appellants’ motions to dismiss.

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The next day, appellants moved to enter guilty pleas under

Federal Rule of Criminal Procedure 11. Each appellant

executed an unconditional guilty plea agreement that did not

“reserve[] in writing the right to have an appellate court review

an adverse determination of a specified pretrial motion.” Fed.

R. Crim. P. 11(a)(2). Appellants entered joint statements of

stipulated facts in support of their respective guilty pleas.

They both stipulated that, from 2006-2010, they were

“co-conspirator[s] in a drug trafficking organization which . . .

transported narcotics from Colombia on stateless go-fast

vessels through international waters.” J.A. 93, 128.

Appellants’ statements of stipulated facts also differed in

certain respects. Munoz Miranda identified one particular

shipment as an example of the conspiracy’s use of stateless

vessels to transport drugs: a shipment intended to travel from

Colombia to Honduras “on board a go-fast boat” that was “not

registered in Colombia and did not fly a Colombian flag.”

J.A. 94. That shipment never left Colombia because it was

stolen before it could be moved. Valderrama Carvajal

identified the same shipment as an example of the conspiracy’s

actions, and also described a second shipment as an additional

example. The latter shipment departed Colombia on board a

go-fast boat that “was not registered in Colombia or any other

nation, and contained no registration identification.” J.A.

129. Colombian authorities intercepted that vessel when it

ran aground on Roncador Island, a remote Colombian island in

the Caribbean Sea.

At their plea hearing, appellants confirmed that they

knowingly and voluntarily entered pleas of guilty and waived

any right to appeal. On October 12, 2012, the district court

accepted both guilty pleas based on appellants’ joint statements

of stipulated facts. But before their sentencing could take

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place, appellants filed a joint motion for reconsideration of

their original motions to dismiss.

On February 20, 2013, the district court issued an opinion

denying reconsideration and memorializing the reasons for its

oral denial of the original motions to dismiss. The court first

explained that, as established by appellants’ factual

stipulations, the two vessels identified as examples of the

conspiracy’s use of stateless boats—the vessel intercepted off

of Roncador Island and the vessel intended to transport the

stolen shipment—were both “without nationality” under the

MDLEA’s definition and thus were “subject to the jurisdiction

of the United States.” 46 U.S.C. § 70502(c)(1), (d). With

respect to the extraterritorial reach of the statute, the court held

that the MDLEA’s conspiracy provision applies

extraterritorially to encompass appellants’ conduct. Finally,

the court determined that the MDLEA, as applied to appellants,

was a valid exercise of Congress’s authority to define and

punish “Felonies committed on the high Seas,” U.S. Const. art.

I, § 8, cl. 10, and that the MDLEA’s extraterritorial application

worked no infringement of appellants’ due process rights.

II.

Munoz Miranda and Valderrama Carvajal appeal the

district court’s denial of their motions to dismiss and their

related joint motion for reconsideration, as well as their

judgments of conviction. Appellants raise both constitutional

and statutory claims.

For each of appellants’ arguments, we must first determine

whether appellants’ unconditional guilty pleas waived their

right to appeal the issue. “It is well settled that a voluntary

and intelligent plea of guilty made by an accused person, who

has been advised by competent counsel, may not be collaterally

6

attacked.” Bousley v. United States, 523 U.S. 614, 621 (1998)

(internal quotation marks omitted). A defendant who pleads

guilty can do so conditionally, reserving the ability to raise

particular challenges on appeal. See Fed. R. Crim. P.

11(a)(2). Here, though, appellants entered unconditional

guilty pleas, thereby waiving all challenges amenable to

waiver. See United States v. Delgado-Garcia, 374 F.3d 1337,

1341 (D.C. Cir. 2004). Appellants therefore make no claim

that their guilty pleas reserved their ability to press the

arguments they now present.

Appellants instead contend that their arguments are

immune from waiver. “There are two recognized exceptions”

to the rule that an unconditional guilty plea waives a

“defendant[’s] claims of error on appeal.” Id. First, a

challenge to the district court’s subject-matter jurisdiction—to

the court’s power to hear a given case—can never be waived or

forfeited. See Arbaugh v. Y & H Corp., 546 U.S. 500, 514

(2006); United States v. Cotton, 535 U.S. 625, 630 (2002);

Delgado-Garcia, 374 F.3d at 1341. Second, certain

constitutional challenges asserting a “right not to be haled into

court at all” cannot be waived through a guilty plea.

Blackledge v. Perry, 417 U.S. 21, 31 (1974); see also Menna v.

New York, 423 U.S. 61, 62 (1975) (per curiam);

Delgado-Garcia, 374 F.3d at 1341.

Appellants contend that either the subject-matter

jurisdiction exception or the so-called Blackledge/Menna

exception insulates each of their arguments from waiver. For

the most part, we disagree. With regard to all but one of

appellants’ claims, we find that appellants’ unconditional

guilty pleas effected a waiver. One of their arguments,

however, goes to the district court’s subject-matter jurisdiction

and cannot be waived: the argument that the vessels in

question are not “subject to the jurisdiction of the United

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States” within the meaning of the MDLEA. 46 U.S.C.

§ 70502(c). While we thus reach the merits of that issue, we

conclude, contrary to appellants’ argument, that the vessels are

in fact “subject to the jurisdiction of the United States.”

A.

Appellants contend that the MDLEA is unconstitutional as

applied to their conduct in two respects. First, appellants

argue that Congress lacks power under the High Seas Clause of

Article I to criminalize their actions in furtherance of the

charged conspiracy because their conduct did not itself take

place on the high seas. See U.S. Const. art. I, § 8, cl. 10

(granting Congress authority to “define and punish . . .

Felonies committed on the high Seas”). Second, appellants

contend that application of the MDLEA to their extraterritorial

conduct violates their Fifth Amendment due process rights in

the absence of a demonstrated nexus between their actions and

the United States. Cf. United States v. Ali, 718 F.3d 929, 943

(D.C. Cir. 2013) (noting that “this Circuit has yet to speak

definitively” on whether “due process may impose limits on a

criminal law’s extraterritorial application”). We do not reach

the merits of those claims because we conclude they were

waived by appellants’ unconditional guilty pleas.

Appellants contend that their constitutional challenges fall

within the subject-matter jurisdiction exception to waiver.

We disagree. While appellants point to decisions from our

sister circuits holding that certain facial challenges to the

constitutionality of a statute implicate subject-matter

jurisdiction, see, e.g., United States v. Saac, 632 F.3d 1203,

1208 (11th Cir. 2011), those decisions do not address whether

as-applied constitutional challenges can be waived, see United

States v. Phillips, 645 F.3d 859, 863 (7th Cir. 2011). Article

III vests federal courts with authority to decide cases “arising

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under . . . the Laws of the United States,” U.S. Const. art. III,

§ 2, cl. 1, and Congress has granted the district courts general

subject-matter jurisdiction over “all offenses against the laws

of the United States” under 18 U.S.C. § 3231. Appellants do

not dispute that the MDLEA was validly enacted and that it

constitutes a “law[] of the United States” for purposes of 18

U.S.C. § 3231. They instead argue that application of the

MDLEA to their particular conduct offends the Constitution in

two ways. But those arguments do not call into question the

district court’s subject-matter jurisdiction over this case

pursuant to Article III and 18 U.S.C. § 3231.

Our decision in Delgado-Garcia is controlling on this

score. There, the defendants raised precisely the same due

process challenge pressed by appellants here, contending that

their convictions violated the Fifth Amendment because the

government “did not prove a ‘nexus’ between [their] conduct

and the United States,” which “they claim[ed] the Fifth

Amendment’s due process clause requires.” Delgado-Garcia,

374 F.3d at 1341. We held that the defendants had waived

that constitutional claim by entering unconditional guilty pleas,

and we rejected the defendants’ argument that their challenge

fell within the subject-matter jurisdiction exception to the

waiver rule. Id. at 1342. The defendants’ “Fifth Amendment

claim,” we explained, “is irrelevant to the court’s Article III

subject matter jurisdiction. The Constitution by its terms

leaves it solely to Congress to allocate that power by statute,

and there is no claim in this case that this jurisdictional grant is

somehow independently unconstitutional.” Id.

That conclusion governs the resolution of appellants’

parallel Fifth Amendment claim here. And there is no reason

to reach any different conclusion with respect to appellants’

as-applied challenge concerning Congress’s Article I authority

under the High Seas Clause. For both challenges, the question

9

whether the MDLEA can be constitutionally applied to

appellants’ conduct is a merits question within the district

court’s authority to decide, not an antecedent question going to

the district court’s subject-matter jurisdiction over the case.

It is equally clear that the Blackledge/Menna exception

fails to immunize appellants’ constitutional claims from

waiver. Together, Blackledge and Menna stand for the

proposition that certain constitutional challenges are immune

from waiver regardless of whether they raise issues of

subject-matter jurisdiction. In Blackledge, the Court held that

a due process challenge arising from repetitive, vindictive

prosecution for the same crime could not be waived by guilty

plea in a situation in which the alleged violation was apparent

on the face of the indictment. 417 U.S. at 30. In Menna, the

Court reached the same conclusion in the context of a double

jeopardy challenge to an “indictment [that] was facially

duplicative of [an] earlier offense of which the defendant had

been convicted and sentenced.” United States v. Broce, 488

U.S. 563, 575 (1989) (describing Menna); see Menna, 423 U.S.

at 62-63 & n.2. Blackledge and Menna involved

circumstances in which the defendant claimed a constitutional

“right not to be haled into court at all” as opposed to asserting a

“deprivation of constitutional rights that occurred prior to the

entry of the guilty plea.” Blackledge, 417 U.S. at 30 (internal

quotation marks omitted); see Broce, 488 U.S. at 574;

Delgado-Garcia, 374 F.3d at 1342-43.

Appellants contend that their due process and Article I

challenges fall within the Blackledge/Menna exception. Once

again, our decision in Delgado-Garcia forecloses their

argument. We held there that the Blackledge/Menna

exception did not encompass the same due process claim

advanced by appellants here. Such a challenge “is a claim that

the due process clause limits the substantive reach of the

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conduct elements” of the statute that the defendants were

charged with violating, “not a claim that the court lacks the

power to bring them to court at all.” 374 F.3d at 1343. As a

result, “[e]ven if the prosecution of [the defendants] violated

the Fifth Amendment for this reason, [they] would still need to

come to ‘court to answer the charge brought against’ them.”

Id. (quoting Blackledge, 417 U.S. at 30).

That conclusion not only governs appellants’ parallel due

process claim, but it also applies to appellants’ Article I

challenge. The latter argument amounts to a contention that

the High Seas Clause “limits the substantive reach of the

conduct elements” of the MDLEA. Id. Even if application

of the MDLEA to appellants’ conduct exceeded the legislative

power granted by the High Seas Clause, they “would still need

to come to ‘court to answer the charge brought against’ them.”

Id. (quoting Blackledge, 417 U.S. at 30). In Blackledge and

Menna, by contrast, the very act of haling the defendants into

court completed the constitutional violation. We therefore

conclude that neither of appellants’ constitutional claims

qualify for the Blackledge/Menna exception. As a result,

appellants cannot raise those claims in this court.

B.

In addition to their constitutional claims, appellants raise

two arguments under the terms of the MDLEA. First, they

contend that the MDLEA’s conspiracy provision, 46 U.S.C.

§ 70506(b), does not apply extraterritorially to encompass their

charged conduct in Colombia. Because the

Blackledge/Menna exception applies only to constitutional

challenges, appellants can avoid waiver only if their statutory

argument goes to the subject-matter jurisdiction of the court.

See Menna, 423 U.S. at 62 (“Where the State is precluded by

the United States Constitution from haling a defendant into

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court on a charge, federal law requires that a conviction on that

charge be set aside even if the conviction was entered pursuant

to a counseled plea of guilty.” (emphasis added)).

The extraterritorial reach of a statute ordinarily presents a

merits question, not a jurisdictional question. The Supreme

Court’s decision in Morrison v. National Australia Bank Ltd.,

561 U.S. 247 (2010), is illustrative. That case addressed

whether § 10(b) of the Securities Exchange Act of 1934, 15

U.S.C. § 78j(b), reaches extraterritorially to cover misconduct

in connection with securities traded on foreign exchanges.

The Court concluded that the statute failed to encompass the

alleged misconduct, but the Court first held that the question of

the statute’s extraterritorial reach is not an issue of

subject-matter jurisdiction. Id. at 253-54. “[T]o ask what

conduct § 10(b) reaches,” the Court explained, “is to ask what

conduct § 10(b) prohibits, which is a merits question.” Id. at

254. “Subject-matter jurisdiction, by contrast, refers to a

tribunal’s power to hear a case.” Id. (internal quotation marks

omitted). The district court in Morrison thus had

subject-matter jurisdiction “to adjudicate the question whether

§ 10(b) applies to [the defendant’s] conduct.” Id.

Appellants identify no reason for any different conclusion

here. Just as in Morrison, to ask “what conduct [the MDLEA]

reaches is to ask what conduct [the MDLEA] prohibits, which

is a merits question,” not a question of subject-matter

jurisdiction. Id. Nothing in the terms of the MDLEA

suggests any intention by Congress to depart from that

ordinary understanding. The district court therefore had

jurisdiction “to adjudicate the question whether [the MDLEA]

applies to [appellants’] conduct.” Id. It follows that the

subject-matter jurisdiction exception affords appellants no

relief from the waiver rule for unconditional guilty pleas.

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C.

In their second claim under the statute, appellants contend

that their charged offenses did not involve “vessel[s] subject to

the jurisdiction of the United States” as defined by the

MDLEA. 46 U.S.C. § 70502(c). Unlike appellants’ other

arguments, this one, we conclude, goes to the district court’s

subject-matter jurisdiction. Appellants therefore may raise

(and we must address) the issue notwithstanding their entry of

unconditional guilty pleas. On the merits, we affirm the

district court’s conclusion that the relevant vessels qualify as

“subject to the jurisdiction of the United States.” Id.

1.

The MDLEA prohibits manufacturing, distributing, or

possessing with intent to distribute drugs “on board” (i) a

“vessel of the United States,” (ii) a “vessel subject to the

jurisdiction of the United States,” or (iii) “any vessel if the

[defendant] is a citizen of the United States or a resident alien

of the United States.” 46 U.S.C. § 70503(a). The charges

against appellants solely involve the second category. The

statute’s definition of “vessel[s] subject to the jurisdiction of

the United States” encompasses certain non-United States

vessels, including “vessel[s] without nationality.” Id.

§ 70502(c)(1)(A).

The MDLEA prescribes that, in cases involving “vessels

subject to the jurisdiction of the United States,” the question

whether the vessels at issue qualify as “subject to the

jurisdiction of the United States” is a threshold question to be

resolved by the district court, not a question for the jury:

“Jurisdiction of the United States with respect to a vessel

subject to this chapter is not an element of an offense.

Jurisdictional issues arising under this chapter are preliminary

13

questions of law to be determined solely by the trial judge.”

46 U.S.C. § 70504(a). If the “preliminary question” whether

the vessels in issue are “subject to the jurisdiction of the United

States” goes to the district court’s subject-matter jurisdiction, it

is immune from waiver.

The courts of appeals that have addressed the issue

disagree on whether United States jurisdiction over a vessel

under § 70504(a) presents a question of subject-matter

jurisdiction. The Eleventh Circuit understands the MDLEA’s

“on board a vessel subject to the jurisdiction of the United

States” requirement to be a “congressionally imposed limit on

courts’ subject matter jurisdiction, akin to the

amount-in-controversy requirement contained in 28 U.S.C.

§ 1332.” United States v. De La Garza, 516 F.3d 1266, 1271

(11th Cir. 2008); see United States v. Tinoco, 304 F.3d 1088,

1107 (11th Cir. 2002). The Fifth Circuit agrees. See United

States v. Bustos-Useche, 273 F.3d 622, 626 (5th Cir. 2001).

The First Circuit has reached the opposite conclusion, holding

that Congress used the term “jurisdiction” in § 70504(a)

“loosely” to “describe its own assertion of authority to

regulate,” as it does “whenever it fixes an ‘affects interstate

commerce’ or ‘involved a federally insured bank’ as a

condition of the crime.” United States v. Gonzalez, 311 F.3d

440, 443 (1st Cir. 2002). Such issues, the First Circuit

reasoned, “have nothing whatever to do with the subject matter

jurisdiction of the federal district court,” but instead “are

routine questions as to the reach and application of a criminal

statute.” Id.

We agree with the Fifth and Eleventh Circuits and

conclude that, under § 70504(a), the question whether a vessel

is “subject to the jurisdiction of the United States” is a matter

of subject-matter jurisdiction. In a series of decisions, the

Supreme Court has addressed whether a threshold statutory

14

condition like § 70504(a) speaks to the district courts’

subject-matter jurisdiction. See Henderson ex rel. Henderson

v. Shinseki, 131 S. Ct. 1197 (2011); Reed Elsevier, Inc. v.

Muchnick, 559 U.S. 154 (2010); Arbaugh, 546 U.S. 500;

Eberhart v. United States, 546 U.S. 12 (2005) (per curiam).

Those decisions contemplate “a ‘readily administrable bright

line’ rule for deciding such questions.” Henderson, 131 S. Ct.

at 1203 (quoting Arbaugh, 546 U.S. at 515-16). “If the

Legislature clearly states that a threshold limitation on a

statute’s scope shall count as jurisdictional, then courts will be

duly instructed and will not be left to wrestle with the issue.”

Arbaugh, 546 U.S. at 515-16 (footnote omitted). “But when

Congress does not rank a statutory limitation on coverage as

jurisdictional, courts should treat the restriction as

nonjurisdictional in character.” Id. at 516.

That approach indicates that the question whether a vessel

is “subject to the jurisdiction of the United States” goes to

subject-matter jurisdiction. The issue is framed as a

“threshold limitation on [the] statute’s scope,” and “the

Legislature clearly state[d] that” it should “count as

jurisdictional.” Arbaugh, 546 U.S. at 515. Congress

prescribed that the “[j]urisdiction of the United States with

respect to a vessel” is a “[j]urisdictional issue[].” 46 U.S.C.

§ 70504(a). Congress also deemed that “jurisdictional issue”

to be a “preliminary question[] of law . . . determined solely by

the trial judge.” Id. The “preliminary question” set out in

§ 70504(a) thus operates precisely in the nature of a condition

on subject-matter jurisdiction: subject-matter jurisdiction

presents a question of law for resolution by the court, and

courts have an “obligation to determine whether subject-matter

jurisdiction exists” as a preliminary matter. Arbaugh, 546

U.S. at 514. Congress not only specified that the “jurisdiction

of the United States with respect to a vessel” is a threshold

question determined by the court, but also that it is “not an

15

element of the offense,” 46 U.S.C. § 70504(a), fortifying its

jurisdictional character. See Arbaugh, 546 U.S. at 514

(distinguishing statutory conditions that function as

“element[s] of a claim” from those that go to subject-matter

jurisdiction, and explaining that courts resolve the latter

whereas juries resolve the former).

In addition, “context . . . is relevant to whether a statute

ranks a requirement as jurisdictional,” Reed Elsevier, 559 U.S.

at 168, and here, the context of § 70504(a) strongly suggests a

requirement of subject-matter jurisdiction. To understand

why, it is important first to recognize that “[b]randing a rule as

going to a court’s subject-matter jurisdiction” is “of

considerable practical importance for judges and litigants.”

Henderson, 131 S. Ct. at 1202. If the “jurisdiction of the

United States with respect to a vessel” presents a requirement

of subject-matter jurisdiction, the requirement would be

immune from waiver or forfeiture by a defendant, and courts

would bear an independent obligation in every case—and at

every level of appellate review—to assure its satisfaction,

regardless of whether a party were to raise it. See id.;

Arbaugh, 546 U.S. at 514. On the other hand, if the

requirement is non-jurisdictional, a court could forgo

addressing it unless it is timely advanced by a party, and a

defendant could either forfeit the issue by overlooking it or

waive it by electing not to press it. See Henderson, 131 S. Ct.

at 1202; Arbaugh, 546 U.S. at 514.

Those practical considerations ordinarily weigh in favor of

construing a threshold statutory condition to be

non-jurisdictional. See Henderson, 131 S. Ct. at 1202. Here,

however, there are strong reasons to conclude that Congress

intended the “jurisdiction of the United States with respect to a

vessel” to be non-waivable and non-forfeitable by a defendant

and to be independently confirmed by courts regardless of

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whether it is raised. In particular, Congress made the

requirement a jurisdictional one in order to minimize the extent

to which the MDLEA’s application might otherwise cause

friction with foreign nations.

The MDLEA defines certain non-United States vessels as

“subject to the jurisdiction of the United States,” including a

“vessel without nationality,” a “vessel registered in a foreign

nation if that nation has consented or waived objection to the

enforcement of United States law by the United States,” or a

“vessel in the territorial waters of a foreign nation if the nation

consents to the enforcement of United States law by the United

States.” 46 U.S.C. § 70502(c)(1)(A), (C), (E). With respect

to the first of those categories, the statute in turn defines a

“vessel without nationality” to include a “vessel aboard which

the master or individual in charge makes a claim of registry

that is denied by the nation whose registry is claimed,” and a

“vessel aboard which the master or individual in charge makes

a claim of registry and for which the claimed nation of registry

does not affirmatively and unequivocally assert that the vessel

is of its nationality.” Id. § 70502(d)(1)(A), (C). The

MDLEA goes on to set forth certain methods for ascertaining

the “[c]onsent or waiver of objection by a foreign nation to the

enforcement of United States law by the United States,” or the

“response of a foreign nation to a claim of registry.” Id.

§ 70502(c)(2), (d)(2). In short, a foreign nation’s “consent,”

“waiver,” or “response” plays a central role in determining

whether a vessel is “subject to the jurisdiction of the United

States” under the MDLEA.

In that setting, it is eminently understandable why

Congress would want the “[j]urisdiction of the United States

with respect to a vessel,” id. § 70504(a), to be insulated from

waiver or forfeiture by a defendant, and would also want courts

in every case—and at every level of review—to assure that the

17

requirement is satisfied. The requirement aims to protect the

interests of foreign nations, not merely the interests of the

defendant. It therefore is not a requirement that the defendant

alone can waive by choice or forfeit by inadvertence. If a

defendant could waive or forfeit the requirement regardless of

the interests of a foreign nation whose prerogatives may be

directly at stake, application of the MDLEA could engender

considerable tensions in foreign relations.

Suppose, for instance, that a defendant wishes to plead

guilty and thus has no desire to dispute that a vessel is “subject

to the jurisdiction of the United States,” even though the vessel

is “registered in a foreign nation” and “that nation has [not]

consented or waived objection to the enforcement of United

States law by the United States.” Id. § 70502(c)(1)(C). Or

suppose that, in the same circumstances, the defendant

inadvertently fails to raise the issue in the district court. If a

court were to decline to address the issue on the theory that the

defendant had waived or forfeited any objection, application of

the MDLEA could cause substantial discord with a foreign

nation. Congress guarded against that risk by rendering the

“jurisdiction of the United States over a vessel” a condition on

subject-matter jurisdiction, thereby obligating courts to

examine the matter regardless of whether a defendant presses

or preserves it. Compare Cotton, 535 U.S. at 629-31 (holding

that a defendant’s protection against defective indictments is

waivable by the defendant and thus does not affect

subject-matter jurisdiction).

Notably, Congress demonstrated the same sensitivity to

the interests of affected foreign sovereigns in another provision

of the MDLEA—enacted contemporaneously with § 70504(a),

see Pub. L. 104-324, 110 Stat. 3901 (1996)—under which a

defendant lacks “standing to raise a claim of failure to comply

with international law as a basis for a defense” because the

18

defense “may be made only by a foreign nation.” 46 U.S.C.

§ 70505. Under § 70504(a), similarly, a foreign nation’s

stake in the application of the MDLEA in cases involving a

non-United States vessel asserted to be subject to United States

jurisdiction means that a defendant effectively lacks

“standing” to waive or forfeit the issue of United States

jurisdiction over the vessel. Congress, moreover, cabined the

jurisdictional inquiry to MDLEA cases in which foreign

relations issues would most likely arise—viz., cases involving

non-United States “vessels subject to the jurisdiction of the

United States,” as opposed to cases involving “vessels of the

United States” or defendants who are United States citizens or

resident aliens. See id. §§ 70503(a), 70504(a). In the latter

situations, the determination whether the vessel is “of the

United States” or the defendant is a United States citizen or

resident alien would go to an element of the offense, and so

would be subject to waiver by a defendant who enters an

unconditional guilty plea.

The government, relying on the First Circuit’s divided

decision in Gonzalez, argues that the term “jurisdiction” in

§ 70504(a) refers to the legislative “jurisdiction” of Congress

in the sense of a so-called “jurisdictional element,” not to the

subject-matter jurisdiction of the federal courts. The

government observes that § 70504(a) speaks in terms of the

“jurisdiction of the United States,” rather than—as with other

statutes that define subject-matter jurisdiction—the

jurisdiction of the “district courts.” E.g., 18 U.S.C. § 3231; 28

U.S.C. §§ 1331, 1332. For several reasons, we are

unpersuaded by the government’s argument.

First, the government fails to account for the strong

reasons to understand § 70504(a) to establish a requirement of

subject-matter jurisdiction as a means of protecting the

interests of foreign sovereigns. Construing § 70504(a) only to

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pertain to Congress’s legislative “jurisdiction,” for the reasons

explained, would potentially give rise to foreign relations

concerns in the application of the MDLEA. It is entirely

understandable that Congress would define the subject-matter

jurisdiction of district courts in a manner sensitive to the

interests of another sovereign. Cf. 18 U.S.C. § 1152

(establishing an exception from general jurisdiction over

federal crimes in certain circumstances for “offenses

committed by one Indian against . . . another Indian” or by an

Indian “in the Indian country who has been punished by the

local law of the tribe”); 28 U.S.C. § 1604 (Foreign Sovereign

Immunities Act).

In addition, when Congress establishes a so-called

“jurisdictional element” addressing the reach of its legislative

authority, Congress does not use the term “jurisdiction” in the

statute. See, e.g., 18 U.S.C. § 656 (criminalizing certain

conduct by an individual who is “an officer, director, agent or

employee of, or connected in any capacity with any Federal

Reserve bank”); id. § 922(q)(2)(A) (making it “unlawful for

any individual knowingly to possess a firearm that has moved

in or that otherwise affects interstate or foreign commerce at a

place that the individual knows . . . is a school zone”). Rather,

“jurisdictional element” is a “colloquialism” used by

“[l]awyers and judges.” Hugi v. United States, 164 F.3d 378,

380 (7th Cir. 1999).

Statutes that establish “jurisdictional elements” not only

contain no use of the term “jurisdiction,” but, consistent with

the description “jurisdictional element,” treat the relevant

condition as an element of the offense to be found by a jury.

In that sense, “proof of [a jurisdictional element] is no different

from proof of any other element of a federal crime.” Id. at

381. By contrast, § 70504(a) specifically provides that the

“jurisdiction of the United States with respect to a vessel” is

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not an element of the offense and is to be determined by the

court rather than by the jury, signifying that Congress did not

intend to establish a “jurisdictional element.” To be sure,

allocation of the issue to the court rather than the jury gives rise

to a possible Sixth Amendment claim (regardless of whether

the issue goes to subject-matter jurisdiction), see Gonzalez,

311 F.3d at 444, but appellants raise no such claim here.

Additionally, a provision’s “placement within” the statute

can “indicat[e] that Congress wanted that provision to be

treated as having jurisdictional attributes.” Henderson, 131 S.

Ct. at 1205; see also Reed Elsevier, 559 U.S. at 164-65;

Arbaugh, 546 U.S. at 514-15. The placement of § 70504(a)

reinforces that it pertains to the subject-matter jurisdiction of

district courts rather than the legislative “jurisdiction” of

Congress. Congress situated § 70504(a) within a provision

addressing, per its title, “Jurisdiction and venue.” 46 U.S.C.

§ 70504; see INS v. Nat’l Cent. for Immigrants’ Rights, Inc.,

502 U.S. 183, 189 (1991) (“[T]he title of a statue or section can

aid in resolving an ambiguity in the legislation’s text.”). The

subject of “venue,” addressed in § 70504(b), by nature speaks

to the authority of a district court to hear a case. The subject

of “jurisdiction,” addressed in § 70504(a), is best understood

likewise to address the authority of district courts to hear a case

rather than Congress’s own authority to regulate. In other

instances in which Congress uses the term “jurisdiction and

venue,” the statute indisputably pertains to the jurisdiction of

the courts. See, e.g., 7 U.S.C. § 941; 29 U.S.C. § 1370; 40

U.S.C. § 123. Congress did the same in § 70504.

That is particularly evident in light of the history of

§ 70504. Before 2006, the language of § 70504(a) addressing

jurisdiction and the language of § 70504(b) addressing venue

were combined in one statutory subsection. See 46 App.

U.S.C. § 1903(f) (2000). The provision read:

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Any person who violates this section shall be

tried in the United States district court at the

point of entry where that person enters the

United States, or in the United States District

Court of the District of Columbia. Jurisdiction

of the United States with respect to vessels

subject to this chapter is not an element of any

offense. All jurisdictional issues arising under

this chapter are preliminary questions of law to

be determined solely by the trial judge.

Id. That entire provision, including the references to

“jurisdiction,” self-evidently concerned the authority of district

courts, not the legislative authority of Congress.

In 2006, Congress relocated the MDLEA, and in doing so

separated what was § 1903(f) into two neighboring subsections

within the new § 70504, without any material change to the

text. There is no reason to conclude that Congress, despite

making no relevant adjustment to the text, meant to

fundamentally transform the “jurisdictional” portion so that it

now speaks to legislative rather than judicial authority. See

H.R. Rep. 109-170, at 2 (2005) (“The purpose of H.R. 1442 is

to complete the codification of title 46 . . . . It does so by

reorganizing and restating the laws currently in the appendix to

title 46. It codifies existing law rather than creating new

law.”). Rather, both halves of a provision addressing

“jurisdiction and venue” continue to pertain to the authority of

courts.

For those reasons, we conclude that § 70504(a) relates to

the subject-matter jurisdiction of the district courts.

Appellants’ entry of unconditional guilty pleas thus could not

waive the question whether the pertinent vessels are “subject to

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the jurisdiction of the United States” within the meaning of the

MDLEA.

2.

Proceeding to the merits, we reject appellants’ argument

that the vessels described in their stipulated facts were not

“subject to the jurisdiction of the United States.” The district

court concluded that appellants’ charged conduct involved

“vessels without nationality,” one type of vessel “subject to the

jurisdiction of the United States.” 46 U.S.C.

§ 70502(c)(1)(A). While we review de novo the district

court’s legal conclusion that the vessels in this case meet the

statutory definition, we review any predicate factual

determinations for clear error. See Herbert v. Nat’l Acad. of

Scis., 974 F.2d 192, 197 (D.C. Cir. 1992). We find no

error—clear or otherwise—in the district court’s decision.

There is no basis for overturning the district court’s

finding that appellants were both involved with “vessels

without nationality.” In their factual stipulations, each

appellant acknowledged that he “was a co-conspirator in a drug

trafficking organization which, from in or about 2006 and

continuing until August 25, 2010, transported narcotics from

Colombia on stateless go-fast vessels through international

waters to other countries.” J.A. 93, 128 (emphasis added).

Appellants do not dispute that “stateless” vessels are vessels

“without nationality.”

Additionally, appellants each gave a “particular” example

of the conspiracy’s plans to transport drugs from Colombia on

board “stateless” vessels. J.A. 94, 129. Munoz Miranda

stipulated that, “[i]n particular,” he and others “planned to

transport more than 500 grams of cocaine on board a go-fast

boat leaving from the north coast of Colombia” in November

2006, and further stipulated that the “boat was not registered in

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Colombia and did not fly a Colombian flag.” J.A. 93-94.

Valderrama Carvajal identified the same example, and also

described an additional example that involved a “go-fast boat”

that “did not fly a flag, was not registered in Colombia or any

other nation, and contained no registration identification.”

J.A. 128-29. “No one in the crew, including the captain,

claimed that the go-fast boat was registered in Colombia.”

J.A. 129. Those stipulations gave the district court an ample

basis for its determination that appellants’ conspiratorial acts

involved “vessels without nationality.”

Appellants contend that neither of the vessels highlighted

as examples in their factual stipulations can count as “vessels

without nationality” because both boats were in Colombian

waters when captured. According to appellants, a vessel is

“without nationality” only when on the high seas, and it ceases

to qualify as stateless when within any nation’s—here,

Colombia’s—territorial waters. The district court correctly

rejected that argument. The statute describes “vessels without

nationality” in a manner that makes no reference to the situs of

a vessel when seized. See 46 U.S.C. § 70502(d)(1). Instead,

the statute contains three nonexclusive examples of “vessels

without nationality,” each of which turns on the “registry” of

the vessel. Id. § 70502(d)(1)(A)-(C). That is consistent with

the general understanding of a stateless vessel under

international law. See United States v. Rosero, 42 F.3d 166,

171 (3d Cir. 1994) (“Under international law, ‘[s]hips have the

nationality of the State whose flag they are entitled to fly.’”)

(quoting Convention on the High Seas of 1958, 13 U.S.T.

2312, T.I.A.S. No. 5200, art. 5(1)). If a vessel in fact ventured

in and out of statelessness depending on where it happened to

be located when seized, the statute would create a perverse

incentive for vessels to race to a foreign nation’s territorial

waters before submitting to interdiction. Congress

established no such regime under the MDLEA, and the vessels

24

in this case thus qualify as “without nationality” even though

they were located in Colombian waters when seized.

* * * * *

For the foregoing reasons, we affirm the district court’s

denial of appellants’ motions to dismiss and for

reconsideration. We also affirm the district court’s

acceptance of appellants’ guilty pleas.

So ordered.